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When mentally ill defendants are found competent to stand trial, does that also mean they are competent enough to represent themselves in court? The Supreme Court struggled with that question Wednesday during an oral argument that weighed the Sixth Amendment right to self-representation against a state’s interest in not having trials “descend into farce.” Along the way, some lawyer jokes were also cracked. The issue in the case Indiana v. Edwards is whether a state may impose a higher standard of competence for self-representation than the fairly minimal test for deciding if a defendant is competent to stand trial. The Indiana Supreme Court ruled that Ahmad Edwards, diagnosed as a schizophrenic, was denied his right to represent himself at a 2005 trial for a department store robbery and shooting. The trial judge had determined that while Edwards met the standard for competence to stand trial — he understood the proceedings and could assist his lawyer — he did not have the additional competence to represent himself. Indiana, backed by the Justice Department, argue that in the interest of protecting both the reality and appearance of fairness and dignity of the courts, states should be allowed to set higher standards for self-representation. “If the public sees the spectacle of a mentally ill defendant … attempt to communicate to the jury on his own in a very delusional way, it really casts the justice system into disrepute,” Deputy U.S. Solicitor General Michael Dreeben told the justices. But Mark Stancil, the lawyer for Edwards, was just as adamant that a defendant declared competent to stand trial should be allowed to handle his or her defense. “The expressed premise of the Sixth Amendment and of our adversarial system generally is that the defense belongs to the accused and not to the state,” said Stancil of D.C.’s Robbins, Russell, Englert, Orseck, Untereiner & Sauber. Stancil said states have adequate tools, including appointment of standby counsel, to handle problems that arise. Justice David Souter challenged Stancil on that point, asserting that “by the time standby counsel is required to take over, the damage is done.” Souter’s comment, similar to concerns voiced by Justice Stephen Breyer, suggested they might favor a higher standard for self-representation in the interest of fairness. “We’ve heard lots of complaints from trial judges,” Breyer said. “Very disturbed people are being deprived and end up in prison because they’re disturbed rather than because they’re guilty.” Justice Antonin Scalia took the opposite view, arguing that if a competent defendant decides to represent himself, any resulting taint “would be his own fault.” Rather than a judge barring a defendant from self-representation before the trial starts, Scalia said, why not “wait to see whether he’s going to pull it off or not?” If a defendant can be allowed to plead guilty, Scalia added, he or she should also be allowed to make the less serious decision in favor of self-representation. As the justices compared the attributes of self-led defense and lawyer-led representation, some jokes were probably inevitable. When Indiana Solicitor General Thomas Fisher suggested a test that would allow judges to bar self-representation for those who “cannot communicate coherently with the court or jury,” Scalia mulled the phrase. “Cannot communicate coherently? … I sometimes think that the lawyers cannot communicate coherently.” Spectators laughed. When Stancil noted that his client understood voir dire and other trial basics, Justice Anthony Kennedy blurted out, “There are all kinds of nuts who could get 90 percent on the bar exam.” Laughter ensued, but it appeared some in the audience thought his choice of words was inappropriate. At another point, Kennedy also said it was unrealistic to believe that some disturbed defendants would obey judges’ orders to keep their arguments on track. “They don’t communicate,” Kennedy said. “It’s two ships passing in the night or in the case of some defendants, about five ships passing in the night.”
Tony Mauro can be contacted at [email protected].

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